Click here for Adobe Acrobat version
Click here for Microsoft Word version


This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.


                                  STATEMENT OF

                       Commissioner Jonathan S. Adelstein

                     Concurring in Part, Dissenting in Part

   Re: Complaints Regarding Various Television Licensees Concerning Their
   February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show, Order
   on Reconsideration

   The Super Bowl XXXVIII halftime show was arguably one of the most shocking
   incidents in the history of live broadcast television. Indeed, the Super
   Bowl was the most-watched program of the entire 2003-04 television season
   and American viewers, collectively, expressed their disappointment and
   disapproval. The Commission, entrusted with the responsibility to execute
   faithfully broadcast indecency laws, responded swiftly and appropriately.

   While I agree with the ultimate outcome of today's Order on
   Reconsideration, I concur in part because the Commission again has not
   provided much-needed clarity and guidance to our decision-making process
   in indecency enforcement. In addition, I dissent in part because I
   continue to believe the Commission has erred in fining only CBS owned and
   operated stations, not all stations that broadcasted the indecent

   Considering the substantial public confusion that pervades the
   Commission's indecency enforcement, we should, whenever possible, opt for
   clear statements of Commission policy. Until today, Commission policy has
   been to refrain from considering third-party polls or opinion surveys in
   assessing whether a program is indecent as measured by contemporary
   community standards. Regardless whether the poll or survey attempts to
   reflect the views of the national or local audience, the Commission simply
   does not consider opinion polls in indecency cases and polls are not a
   factor in determining the contemporary community standards. To suggest
   otherwise, as the instant Order does, is contrary to long standing
   Commission policy.

   I also have grave concerns with the failure of this Order to provide clear
   guidance on the nature of the Commission's new fine imposition policy
   announced in the March 15^th, 2006, Omnibus TV Order. Rather than stating
   what the new policy is not, as today's Order does, the Commission should
   state affirmatively the key features of our new "more limited approach
   towards the imposition of forfeiture penalties." After all, it is still
   unclear how the Commission determines the sufficiency of a viewer's
   complaint in light of this new enforcement policy.

   Finally, I dissented in part in our initial Super Bowl decision (the
   September 22^nd, 2004, Notice of Apparent Liability), and I do so again
   today. I continue to believe the Commission has decided erroneously to
   fine only CBS owned and operated stations, not all stations that
   broadcasted the indecent material. Notwithstanding the fact that this
   Commission has always purported to apply a national indecency standard on
   the broadcast medium, the Commission has failed to penalize the vast
   majority of stations that actually broadcasted the offending halftime

   I believe now, as I believed then, that this is not the restrained
   enforcement policy the Supreme Court advised in Pacifica. Consistent with
   the values of First Amendment, this Commission should exercise restraint
   and caution in its determination of the type of expression that is
   indecent. But once the indecency determination is made, the Commission
   should apply a uniform fine imposition policy across the broadcast medium.

   The Commission has an obligation to provide clarity and guidance whenever
   possible. Equally, the Commission is obligated to enforce a consistent
   fine imposition policy across the broadcast medium. Sadly, today's Order
   fails to meet our obligation on both counts. Accordingly, I concur in part
   and dissent in part to this Order on Reconsideration.

   While the Commission, in today's Order, maintains that it rejects the use
   of third-party polls as "determinative" and that it does not "rely" upon
   any third-party polls, we should provide clear guidance as to whether the
   Commission, as a matter of policy, even "considers" polls in its indecency
   analysis. The answer to that inquiry should be an unequivocal "no." Rather
   than making this point clear, the Commission engages in a gratuitous
   discussion about the adequacy of the polls cited by CBS. The Commission
   argues that the opinion polls cited by CBS were unavailing because the
   polls did not answer the central legal question - namely, "whether the
   Super Bowl broadcast was patently offensive under contemporary community
   standards." Order at P 14. This discussion is misleading because the
   Commission does not consider polling data, notwithstanding the artfulness
   of the questions asked by pollsters.

   Order at P 30.

   Complaints Regarding Various Television Programs Broadcast Between
   February 2, 2002 and March 8, 2005, FCC 06-17 (released March 15, 2006)
   (Omnibus TV Order) at P 71.

   In a failed attempt to address this significant concern, the instant Order
   states that "it is sufficient that viewers in markets served by each of
   the CBS Stations filed complaints with the Commission identifying the
   allegedly indecent program broadcast by the CBS Stations." This is a mere
   restatement of fact, not a policy statement of the essential components of
   a sufficient and adequate complaint.

   In the Omnibus TV Order, the sole guidance the Commission provided was
   that it would propose forfeiture against only the licensee whose broadcast
   of the material was actually the subject of a viewer complaint. Omnibus TV
   Order at P 71. Yet in the same order, based on a California viewer's
   complaint of indecent material against a local Washington, D.C. affiliate
   and the entire network, the Commission proposed forfeiture only against
   the local D.C. affiliate. The California viewer did not even assert that
   she viewed the program in Washington, D.C. Further, in the same case, it
   was completely unclear whether the complainant even watched the program on
   over-the-air broadcasting or on cable. The Commission is obligated to
   resolve or clarify these legitimate concerns.

   See Complaints Against Various Television Licensees Concerning Their
   February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show,
   Notice of Apparent Liability for Forfeiture, FCC 04-209 (released
   September 22, 2004) (Commr. Jonathan S. Adelstein, approving in part and
   dissenting in part).

   Federal Communications Commission FCC 06-68



   Federal Communications Commission FCC 06-68